Citation: Regina v J L Baartman [2000] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 13 September 2000
Judge(s): Spigelman CJ, Kirby J, Smart AJ
Background
The appellant was convicted of murder following a retrial before Dunford J and a jury in the NSW Supreme Court. The deceased was shot at his home in Lugarno in February 1993 after a man at the door asked to speak to someone named "Tony." The Crown alleged the appellant had participated in the killing as a lookout, with others firing the fatal shot.
The Crown case rested substantially on two witnesses. The first, referred to as Miss Brown, gave evidence that the appellant had told her the pistol found in her flat was "a murder weapon." The second, Mr Bicanic, gave evidence of conversations at a shared flat in the days before and on the night of the murder, in which plans to shoot a man at Lugarno were discussed and the appellant's role was described. Ballistics evidence confirmed the pistol was the murder weapon.
The appellant denied knowing the other participants, denied visiting the Waterloo flat, and made an unsworn statement at trial. He appealed against his conviction on several grounds, primarily directed at the adequacy of the trial judge's directions to the jury.
Legal Issues
- Whether the trial judge erred in directing the jury that it could reach a guilty verdict even if it was not satisfied beyond reasonable doubt about each individual item of circumstantial evidence, rather than requiring each intermediate fact to be proved to that standard.
- Whether the trial judge was required to give the jury a warning under section 165 of the Evidence Act 1995 in relation to Mr Bicanic's evidence, given that his evidence did not fall within any of the categories listed in section 165(1)(a) to (g).
- Whether the trial judge erred by failing to remind the jury, when later reviewing Miss Brown's evidence in the summing up, of the earlier warning already given about her evidence.
Decision
On the circumstantial evidence direction, the Court found no error. The trial judge's directions were consistent with the approach confirmed in Shepherd v The Queen (1990) 170 CLR 573: in a circumstantial case, the jury must be satisfied of guilt beyond reasonable doubt on the totality of the evidence, but it is not required to be satisfied beyond reasonable doubt of each intermediate fact relied upon. The summing up correctly reflected this principle.
On the section 165 warning for Mr Bicanic, the Court held that the trial judge had not erred by declining to give one. Section 165 of the Evidence Act 1995 requires a warning where evidence falls within defined categories such as prison informers or unreliable identification evidence. Mr Bicanic's evidence did not fall within any of those categories. The Court distinguished his position from that of Miss Brown, who had come forward after being arrested in connection with an unrelated matter and had traded information for personal advantage, placing her in a position analogous to a prison informer. Mr Bicanic, by contrast, came forward voluntarily at a time when nothing connected him to the murder. The Court concluded that a warning in respect of Mr Bicanic was not "plainly necessary" and that the issue had been adequately exposed through counsel's addresses and the terms of the summing up.
On the final ground, the Court rejected the complaint that the trial judge failed to refer back to the earlier warning about Miss Brown when reviewing her evidence later in the summing up. Although it would have been appropriate and helpful to do so, the summing up was relatively short, defence counsel had not requested a reminder, and no error arose from the omission.
Orders Made
- The appeal was dismissed.
Key Takeaways
- In a circumstantial evidence case, the jury is not required to be satisfied beyond reasonable doubt of each individual intermediate fact; the applicable standard applies to the ultimate question of guilt assessed from the whole of the evidence, consistent with Shepherd v The Queen.
- Under section 165 of the Evidence Act 1995, a warning about potentially unreliable evidence is only mandatory where the evidence falls within one of the enumerated categories in section 165(1)(a) to (g); evidence falling outside those categories does not automatically attract a statutory warning.
- Where a witness's evidence falls outside the statutory categories, the question of whether a warning is nonetheless required turns on the circumstances. The Court of Criminal Appeal drew a clear distinction between a witness who trades information for personal advantage (analogous to a prison informer) and one who volunteers information without any identified benefit.
- No error arises from a trial judge's failure to cross-reference an earlier warning when reviewing the relevant witness's evidence later in a summing up, at least where the summing up is short and defence counsel did not request the reminder.
- The decision does not establish a broad rule that warnings are never appropriate for evidence outside the section 165 categories; it confirms only that such a warning was not "plainly necessary" on the particular facts here.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 165(1), 165(6)
Cases:
- Peacock v The King (1911) 13 CLR 619
- Shepherd v The Queen (1990) 170 CLR 573
- Bromley v The Queen (1986) 161 CLR 315
- Longman v The Queen (1989) 168 CLR 79
- Farrell v The Queen (1998) 194 CLR 286
- R v Velevski [1999] NSWCCA 96
- R v McIntyre [2000] NSWCCA 6
- R v Gary Perks (1986) 20 A Crim R 201
- R v Lewis (NSWCCA, unreported, 8 September 1998)